The Pot Law May Stand, but It Still Needs Fixing

The Pot Law May Stand, but It Still Needs Fixing
Posted by CN Staff on January 02, 2004 at 08:23:12 PT
Source: Globe and Mail 
The Supreme Court of Canada ruled last week that Parliament has the power to make possession of marijuana a crime. It did not rule on whether the government should continue to do so. Its ruling did not make the law a better law, and it did not undercut the campaign to decriminalize simple possession of small quantities of marijuana. Prime Minister Paul Martin should revive his predecessor's legislation to move minor possession out of the Criminal Code.
The cases before the court involved two men, both from British Columbia, who were separately charged in 1993 and 1996 with possession of marijuana. Mounting separate defences, they argued that Parliament did not have the power to criminalize the use of an intoxicant that posed little if any harm, and that if it did have that power, the guarantee of liberty in the Charter of Rights and Freedoms made the marijuana law unconstitutional.Three of the judges found the arguments persuasive, though they differed in their reasons and wrote three separate dissents. Madam Justice Marie Des-champs neatly articulated the main objection: that "the harm caused by prohibiting marijuana is fundamentally disproportionate to the problems that the state seeks to suppress."The six judges in the majority upheld the law. Although debate continues over the effects of smoking marijuana, they ruled, it is safe to say that chronic smokers are liable to develop chronic bronchitis and other problems. Protecting "these vulnerable individuals" from a health hazard is a legitimate public purpose, which in turn satisfies the test of whether Parliament can create a criminal offence. As long as the potential harm is "not insignificant or trivial," Mr. Justice Ian Binnie and Mr. Justice Charles Gonthier wrote for the majority, "the precise weighing and calculation of the nature and extent of the harm is Parliament's job."As for the argument that Parliament is being inconsistent in criminalizing marijuana while letting harmful drugs such as alcohol and tobacco remain legal, the court did not disagree. It simply said the point is irrelevant. "If Parliament is otherwise acting within its jurisdiction by enacting a prohibition on the use of marijuana, it does not lose that jurisdiction just because there are other substances whose health and safety effects could arguably justify similar legislative treatment."The majority is clearly keen to give the lawmakers in Parliament a great deal of latitude, and we salute the principle. The court's job is to decide whether laws offend basic rights and freedoms, not to usurp the role of the lawmakers. In this case, the majority said the available punishment of imprisonment for marijuana possession is not grossly disproportionate to the offence, since there is no minimum mandatory sentence and judges routinely hand out conditional discharges in the absence of aggravating factors.However -- and it's a big however -- this is the beginning, not the end. Even as it upheld Parliament's power, the court said its concern was "solely with the issue of constitutionality." Parliament can continue to make possession illegal "should it choose to do so." However, the accused men have raised "matters of legitimate controversy" in arguing that "the line between criminal and non-criminal conduct has been drawn inappropriately and that the evil effects of the law against marijuana outweigh the benefits, if any, associated with its prohibition."We are back in the political arena. It's the same arena in which the Royal Commission Inquiry on Drug Use -- the Le Dain commission -- recommended in 1972 that simple possession be decriminalized. It's the same arena in which the Chrétien government's Bill C-38 would have made possession of less than 15 grams of marijuana a summary offence, punishable only by a fine. The bill would have placed that law under the Contravention Act, not the Criminal Code, to spare offenders a criminal record.And that cuts to the heart of the problem. As one of the trial judges in these cases noted, an estimated 600,000 Canadians have criminal records for cannabis-related offences. The law treats hundreds of thousands of people as criminals for engaging in an activity in which fully one-third of Canadians are estimated to have participated. The consequences of a criminal record -- restrictions on travel, ineligibility for certain jobs -- is way out of proportion to the offence. The potential penalties are so severe that many police officers issue a warning instead of making an arrest -- lucky for those who receive the caution, but a corrosively uneven application of the law.That Parliament has the power to use so heavy a hammer does not justify its use. That the Supreme Court says the availability of imprisonment is not "grossly disproportionate" does not make it right.Mr. Martin has been evasive on the issue. He has indicated that he supports the former government's bill but wants to amend it so that it covers only a "very, very, very small amount" of marijuana. Diluting the bill would be a mistake. Simple possession should be decriminalized. Mr. Martin should bring strong legislation forward at the earliest opportunity. Parliament has the power to pass that bill, too. Source: Globe and Mail (Canada)Published: Friday, January 2, 2004 - Page A14 Copyright: 2004 The Globe and Mail CompanyContact: letters globeandmail.caWebsite: Articles & Web Site:Cannabis News Canadian Links Law Back To Martin Toke or Not To Toke? Can No Longer Be Snickered Away
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Comment #12 posted by Max Flowers on January 02, 2004 at 12:37:22 PT
Alcohol prohibition vs cannabis prohibition
There is one key difference I can think of right off the bat though: during alcohol prohibition, if people gathered to drink in a private party (no sales), nothing happened to them, but imagine what would happen, even in California, if one were to publicly arrange a private party (tickets to which were sold) which was a BYOB (bring your own buds) party. I believe the party would be busted, privacy violated, doors broken down, people harassed, bullshit RAVE laws enforced. So there is at least one big difference.
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Comment #11 posted by DeVoHawk on January 02, 2004 at 10:34:03 PT:
Thanks for the good info Everybody
I feel smarted everyday I read the great comments from CNers. Thanks for the info.
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Comment #10 posted by BigDawg on January 02, 2004 at 10:29:53 PT
Alcohol Prohibition
As ron said it was illegal to buy or sell alcohol... but no possess.Speakeasies were ignored for the most part as well.Law enforcement went after the gangsters created by prohibition... while leaving "Joe Average Drinker" alone. Similar to decrim... allowing for demand... but not supply driving prices, profits, and violence sky high.
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Comment #9 posted by Virgil on January 02, 2004 at 10:27:38 PT
Consumers were not targeted in alcohol prohibition
The laws of federal alcohol prohibition were against producers and distributors and did not target the individual consumer.Here the guy is playing a game. He is calling for the decrimilization bill instead of just calling for decrimilazation. The bill he refers to has harsh penalties for growers that only serve to drive up the price and bring about a madness practiced in the US with harsh sentences and seizures.Why did he not call for legalization? Why did he not challenge the demonization about cannabis causing bronchitis or say that only its smoking should be illegal because eating it is really healthy with the light intoxication that the moralist think worthy of a failure of government that extends to a failure of culture and the American way.This guy is fowarding the proposed legislation and not a better definition of freedom. It is a more sinister bill than the press is acknowledging. I hope the issue puts a whooping on the Liberals in the next election for even suggesting such penalties when regulation is warranted.Alexander Cockburn wrote another excellent piece at CounterPunch last weekend titled, "A Journey into Rupert Murdoch's Soul." If I were civics teacher and could assign its reading, I surely would. It speaks of the arrangements that Murdoch has with the governments of the US, UK, and China for their favors such as letting him acquire the London Times and Direct TV. Alexander Cockburn calls it privitiizing propaganda, which is what Faux News does along with all of NewsCorp. article is propaganda lite, which means it is still propaganda. It did not even mention the cultivation issue and as that is what makes the bill suck and increases the harms of prohibition, it is not journalism when they leave that out. I wish Gomer Pyle had said in Andy Griffith or "Propaganda, propaganda, propaganda." A link would be appropriate to that video right now.
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Comment #8 posted by FoM on January 02, 2004 at 10:25:38 PT
I found this link. It says medicinal or sacramental use was allowed.
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Comment #7 posted by ron on January 02, 2004 at 10:21:01 PT
Decriminalization = Prohibition
The Volstead Act made buying or selling alcohol illegal, but not possession.Since Harry Anslinger we've had Cannabis Persecution.John Walters is a persecutor. Paul Martin aspires to be a prohibitionist. Question: Is it one third or two thirds of the police budget that is spent on this senseless persecution? 
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Comment #6 posted by DeVoHawk on January 02, 2004 at 10:19:02 PT
I had heard that during church(Mass) people were still allowed to drink wine(the body and blood thing) but I have never actually read this anywhere.I was not sure what loophole in the law allowed this happen or if it was true.
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Comment #5 posted by FoM on January 02, 2004 at 09:53:52 PT
I think so. It might have been because of medicinal use of alcohol. I don't know why I think that but I might have read it somewhere.
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Comment #4 posted by DeVoHawk on January 02, 2004 at 09:51:34 PT:
Was alcohol legal to drink during prohibition but illegal to buy?
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Comment #3 posted by BigDawg on January 02, 2004 at 09:23:41 PT
Excellent analogy.I had considered decrim to still be part of the WOD, but had never connected the dots between decrim and Alcohol Prohibition.Seems to be essentially the same. Leave users alone... but continue the "war" on producers and distribtors... keeping the fat cats fat.
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Comment #2 posted by SystemGoneDown on January 02, 2004 at 09:03:57 PT
I was thinking the exact same thing. I was watching this O'reilly Factor, just to get entertained on his bigot hitler-like conservative views. And one of the guests was the guy for Forbes magazine who said his issue on the Canadian Marijuana industry was by far his best-selling issue and received the most mail. O'reilly wouldn't dare go against public opinion, so he said he's for DECRIMINALIZING. And I jus watched and felt like screaming "Decriminalizing is a half-ass take on the issue. What your doing is saying it's a crime to sell it, but not a crime to buy it. This is identical to alcohol prohibition". The only just and truthful solution is full out legalization. Decriminalizing would be good for the security of the average pot smoker not getting in trouble.  But as far as rule of law goes, decrminalization would totally mock what laws are meant for. Legalization will re-install the integrity of laws. Only about 25% of regular marijuana smokers get caught in their life times. And that 25% is still a prolific 700,000 a year!!! What that does is totally kill the rule of law. Decriminalizing just adds more flaws to our law system, and shows the discrace of how meaningless they are.
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Comment #1 posted by cloud7 on January 02, 2004 at 08:48:18 PT
While it's good that Globe and Mail is running a nice in depth story on the current situation, they leave out the fundamental question of whether there should be or why there is any criminal penalty at all. They still act like "decriminalization" is the solution to all the problems associated with prohibition and they urge the government to pass this. LEGALIZATION is the ONLY fair and just solution and until this happens no cannabis user is truly free.
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